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Unhappiness not enough to get a divorce

Insights - 27/03/2017

The Court of Appeal on Friday 24 March 2017 handed down the judgment on the case of Tini Owens v Hugh Owens.

Mr. and Mrs. Owen married in 1978 and separated in February 2015.

Last year His Honour Judge Tolson QC refused to grant Mrs. Tini Owen’s petition for divorce on the basis that the allegations were the “kind to be expected in marriage”. Mrs. Owen, 66, appealed the decision.

It is unusual for a divorce to be defended and it is rare for judges to dismiss an application for divorce.

Mr. Owens, 78, defended the divorce on the basis that the couple still had a “few years” of married life left.

As the law stands in England & Wales, to petition for a divorce there is only one ground. That being that the marriage has irretrievably broken down.

This has to be supported by one of the following 5 facts:

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;

that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Mrs. Owen’s position was that she was in a “loveless and desperately unhappy” marriage. The Court of Appeal however upheld the decision of the family court. Sir James Munby raised that “in law” the marriage had not irretrievably broken down.

Mrs. Owens unfortunately failed to prove that Mr. Owens had “behaved in such a way that she could not reasonably be expected to live with him”. Lady Justice Hallett explained that they “cannot ignore the clear words of the statute on the basis that we dislike the consequences of applying them”.

If Mr. Owens does not agree to divorce on the basis of 2 year separation Mrs. Owen will have no other option but to wait for the 5 years separation to be up before applying for a divorce again. Mr. Owens however will be in a position to defend the divorce again at that time if he has grounds to argue that the dissolution of the marriage would place him in “grave hardship”.

This case has renewed the arguments in favour of “no fault” divorce. Not only does it unnecessarily increase acrimony where it is obligatory to bring up allegations of “behaviour”, but it is a little ridiculous in the Owens situation where one party is so determined that the marriage has ended that they are prepared to take it all the way to the Court of Appeal – only to be told that the marriage is somehow still viable!

Opponents of the no fault divorce have raised concerns that such a change will make ending a marriage too easy. There is however currently no statistical evidence from countries that have implemented a no fault divorce to support this argument. Scotland introduced the no fault divorce in 2006. Initially the divorce rates rose, but since then the divorce rate has continued to fall.

In February 2017, despite lobbying from family lawyers, the government confirmed that they had no plans to change the current legislation, although the Justice Minister, Lord Keen of Elie stated that the government was committed to improving the family justice system.

We will have to wait and see if the impact of this judgment will lead to the government reviewing its position and considering once again the merits of a “no fault” divorce system in the world of family law.

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